was objected that H. was not tenant in tail, but that his children took by purchase. The vendor instituted a suit in equity to enforce the performance of the contract, and the Master reported in favor of the title. The purchaser excepted to the report, and the exception was argued at the Rolls (c), before Graham, B., and Master (afterwards C. B.) * Alexander, and Master Stratford (sit- [*1227] ting for the then M. R.), who, after taking time to examine the authorities, differed in opinion; the two former thinking it very doubtful at least whether H. took more than an estate for life, and Master Stratford being of a contrary opinion, so that no judgment was given. The exception was afterwards (d) argued before Sir T. Plumer, M. R., who, upon looking into the cases, thought there was so much doubt whether H. took an estate tail, that the purchaser ought not to be compelled to take the title, and accordingly dismissed the bill; and the Lord Chancellor (Lyndhurst), on appeal, affirmed the order (e).

Examination of the circum

which Wilcox v. Be laers

The only circumstances affording the slightest pretext for distinguishing this case from Jesson v. Wright are, first, the power to appoint to the children, secondly, the stances in legacy to the devisee in remainder, in case H. "should live and have children as aforesaid," and thirdly, the words of limitation superadded to the gift to the heirs of the body.

differs from Wright.

Jesson v.

As to the first point, we learn from Smith v. Death (ƒ), that there is no necessary implication, that the term "heirs of the body" in the limitation is used to describe the same objects as "children" in the power. As to the second, it will perhaps be said that the testator evidently intended the devisee in remainder to have the legacy if the objects of the prior devise came into existence, and which, therefore, is explanatory of those objects being children. But this is merely conjectural; the testator might intend the legacy to be a charge only as against the objects of the power, as distinguished from the objects of the limitation, because the donee might have appointed to those objects in fee to the total exclusion of even a chance of succession by the devisee in remainder. However this may be, the circumstance is far too equivocal to be made a ground for departing from the construction of words of an established meaning. As to the third point, it has been repeatedly decided that a limitation to the heirs general, superadded to a gift to "heirs of the body," will not convert the latter into words of purchase with the restricted sense of "children.”

Nor is Wilcox v. Bellaers the only instance in which reluctance has been manifested to follow up the principle of Jesson v. Wright; for in other cases the term "heirs of the body" has since been cut

down to children, in subservience to expressions in the * con- [*1228]

(c) June, 1823.
(e) T. & R. 495.

(d) 17 Dec., 1823.

(ƒ) 5 Mad. 371; stated ante, Vol. I., p. 519.

text which that case had appeared forever to have stripped of all controlling operation.

Thus, in Right d. Shortridge v. Creber (g), where a testator devised. a messuage to trustees and their heirs, in trust to permit his daughter J. and her assigns, to receive the rents for her life free from her husband, and after her death then the testator devised the same to the heirs of the body of J., share and share alike, their heirs and assigns forever, it was held that the words "share and share alike " denoted that the testator meant by "heirs of the body" to designate children.

"Share and share alike," their heirs and assigns forever.

Remarks on
Right v.
Creber.

It is proper to observe that Jesson v. Wright, although decided several years before Right v. Creber, was not cited in the latter case, and the subsequent determination of the Court of Queen's Bench in Doe v. Featherstone (h), already stated, shows that a similar decision would not now be made. It is surprising, however, that in Doe v. Featherstone the case of Right v. Creber was referred to by Patteson, J., as not inconsistent with what the Court was then about to decide; for the only distinction is, that in one case there were, and in the other there were not, superadded words of limitation, which were, we have seen, wholly immaterial, and on which indeed no stress was laid by the Judges who decided Right v. Creber.

made where

It may be observed, in conclusion of this section, that a No distinction different construction will not necessarily be put upon limitations by way of trust expressed in words such as those now under consideration, merely because the trust is a trust to convey and not a direct trust (i).

there is a

direction to convey.

IV.

Effect of clear

words of explanation an

nexed to heirs

Effect of Clear Words of Explanation. But it is not to be inferred from the preceding cases that the words "heirs of the body" are incapable of explanation by the effect of superadded expressions clearly demonstrating that the testator used those words in some other than their ordinary acceptation, and as descriptive of another class of objects. The rule established by those cases only requires a clear indication of intention to this effect. Where the words in question are accompanied by such an explanatory context, the devise [*1229] is to be read as if the terms which they are explained to mean were actually inserted in the will.

of the body.

Accordingly, in Lowe or Lawe v. Davies (k), where a testator de

(g) 5 B. & Cr. 866.

(h) 1 B. & Ad. 944; ante, p. 1215. Right v. Creber was thought by Wood, V.-C., to be reconcilable with Doe v. Jesson and Doe v. Featherstone, on the ground that the estate for life was equitable and the remainder legal, so that the rule in Shelley's case, did not apply, 1 J. & H. 737. But as to this, vide sup. pp. 1220, 1221.

() Marryat v. Townly, 1 Ves. 102.

(k) 2 Ld. Ray. 1561, 2 Stra. 849, 1 Barn. B. R. 238.

vised to B. and his heirs lawfully to be begotten, "that is to say, to his first, second, third, and every other son and sons successively, lawfully to be begotten of the body of said Lowe v. Davies. B., and the heirs of the body of such first, second, &c., Heirs, "that is it was held that B. took but an estate for life; for the subsequent clause was explanatory of what "heirs" meant.

to say," &c.

Lisle v. Gray.

"Heirs male of the body," explained to

mean sons.

So, in Lisle v. Gray (1), where real estate was limited by deed to the use of E. for life, remainder to the use of the first son of the body of E. and the heirs male of the body of such first son, and for default of such issue, to the use of the second son of the body of E. and the heirs male of the body of such second son (similar limitations were car. ried on to the fourth son), "and so to all and every other the heirs male of the body of E. respectively and successively, and to the heirs male of their body, according to seniority of age." There was a power to raise portions out of the land if E. died without issue male. It was held that E. took only an estate for life; the words "and so," &c., showing that the words "heirs male" in the latter clause meant sons, by relation to the preceding limitation.

Goodtitle v.

Herring. Same construction.

Again, in Goodtitle d. Sweet v. Herring (m), where the devise was to A. for life, remainder to trustees to preserve contingent remainders, remainder to the heirs male of the body of A. to be begotten severally, successively, and in remainder one after another, as they and every of them should be in seniority of age and priority of birth, the elder of such sons and the heirs male of his body lawfully issuing, being always to be preferred to the younger of such sons and the heirs male of his and their body and bodies; and for default of such issue, to the daughters, as tenants in common, and the heirs of their bodies. The Court held that the testatrix had, by the words "the elder of such sons," &c., explained herself by "heirs of the body" to mean sons, so that A. took only an estate for life.

So, in North v. Martin (n), where by a marriage settlement * lands were conveyed to the use of A., the intended [*1230] husband, for life, with remainder to trustees to preserve contingent remainders, with remainder to B., the intended wife, for life, and after the decease of the survivor, to the use of the heirs of the body of A. on the body of B. to be begotten Martin. and their heirs, and if more children than one, equally to be divided among them, to take as tenants in com- body" held to mean children. mon, and in default of such issue, then over. It was

North v.

"Heirs of

(1) 2 Lev. 223, T. Jo. 114, T. Ray. 278, 315, affirmed in Ex. Ch., Pollex. 591, 1 P. W. 90, 2 Burr. 1109, not, as erroneously stated in Jo. & Ray., reversed; see also Hayes's Inq. 81. (m) 1 East, 264, affirmed in D. P., see 3 B. & P. 628; see also Mandeville v. Lackey, 3 Ridg. P. C. 352, post. As to the expression heirs male now living, see Burchett v. Durdant, 2 Vent. 311, Carth. 154, ante, Vol. I., p. 289, n. (b). For some other instances of the same kind, see ante, p. 916.

(n) 6 Sim. 266.

contended that, according to the authorities, particularly Wright ». Jesson, A. was tenant in tail by force of the limitation to the heirs of his body; but Sir L. Shadwell, V.-C., held that the words "and if more children than one" were interpretative of those words, observing that no case had been cited, nor did he recollect any in which the words "heirs of the body" had been held to create an estate tail, where those words of interpretation had been used; and he added (and the remark is deserving of attention), that this did away with the effect of the argument founded on the limitation over for default of such issue, which must be construed for default of such children.

Doe v. Woodall.

"in manner aforesaid," explained by preceding limitations.

Again, in Doe d. Woodall v. Woodall (0), there was a devise to the testator's four grandchildren for their lives as tenants in common, with remainder as to the share of which each was tenant for life to his or her first and only sons successively in Heirs of body tail, with remainder to his or her daughters as tenants in common in tail, with cross remainders in tail between the daughters and then the testator proceeded, "in case either of my said grandchildren shall happen to die leaving no issue behind him, her, or them, then my will and meaning is that all and singular the premises herein lastly devised shall go and remain to the survivor of them and the heirs of his or her body lawfully to be begotten in manner aforesaid." It was contended that, under the last clause, a surviving grandchild took an estate tail in the share of a grandchild who left no issue; but the Court of C. B. held that the limitation to the "heirs of his or her body" was explained by the words "in manner aforesaid " to mean a limitation to the first and other sons successively in tail, with remainder to the daughters as tenants in common in tail, as in the preceding limitations, and that the surviving grandchild therefore took only an estate for life.

Gummoe v.
Howes.

*

In Gummoe v. Howes (p) the devise was upon trust for [*1231] A. and B. equally for life, and in case of the death of either of them without issue, the part or share of her so dying to go to the survivor of them, but if either of them should depart this life leaving issue, then the part or share of her so dying to go to her children in equal proportions if more than one, and if but one, then to such only child; and after the death of both A. and B., the testator directed his trustees to convey, assign, and transfer the property to the heirs of the body of A. and lawfully begotten, share and share alike, or to the survivor or survivors of them if more than one, and if but one, then to such only child when and as

Heirs of the body explained to mean children.

(0) 3 C. B. 349; and see Green v. Green, 8 De G. & S. 480.
(p) 23 Beav. 184.

often as he, she, or they should attain his, her, or their respective age or ages of twenty-one years of age; and the will contained a devise over on the death of A. and B. without issue. Sir J. Romilly, M. R., held that the words "heirs of the body" were interpreted to mean children," and that A. and B. took estates for life only.

66

Jordan v.

Adams.

Heirs male of the body held to mean sons,

by mention of "their

father."

And in Jordan v. Adams (q), where a testator devised lands to W. T. for life, and after his decease "to the heirs male of his body for their several lives in succession according to their respective seniorities, or in such parts, shares, and proportions, manner, and form, and amongst them as the said W. T. their father should appoint. And in default of such issue male of W. T.," over. It was held by the Court of C. B. that the testator had here shown that by heirs male of the body he meant sons, for in case of an appointment the appointor must stand in the relation of "father" to the appointees. In delivering the judgment of the Court, Erle, C. J., allowed greater weight than was warranted by Jesson v. Wright to the words of modification contained in the devise: but Williams, J., declared his concurrence with the rest solely on the ground of the use of the words "their father." On appeal to the Exch. Ch. that Court was equally divided and the two Judges who agreed with the decision. below did so only on the ground taken by Williams, J.; Cockburn, C. J., one of them, declaring that the authorities forbade them to ascribe to the words of modification the effect claimed for them. In all the preceding cases it will be seen that the testator had annexed to the term "heirs of the body," words of explanation, which were held to prove that he had used the expres- [*1232] sion as synonymous with sons. These cases, therefore, may

*

Remark on preceding cases.

be supported, without impugning the general principle, as stated by Lord Alvanley in Poole v. Poole (r), that the Courts will not deviate from the rule which gives an estate tail to the first taker if the will contains a limitation to the heirs of his body, except where the intent of the testator appears so plainly to the contrary that nobody can misunderstand it; for the will in these cases seemed to supply the clear incontrovertible evidence of intention required by such a statement of the doctrine.

On the other hand, in Jones v. Morgan (s), it was decided, and that in perfect consistency with the principle of the cases just stated, that a devise to W. for life, without impeachment of waste, and after his decease to the use of the heirs male of the body of W. lawfully begotten

(9) 6 C. B. (N. S.) 748. 9 id. 483. It is remarkable that no reference was made to Shaw v. Weigh, 2 Str. 798 stated Ch. XXXIX., s. iii., where, notwithstanding the word "mother" occurring in similar relation to "issue," the latter word was held a word of limitation.

(r) 3 B. & P. 627. There is a striking similarity between the general scope of Lord Alvanley's reasoning here and that of Lords Eldon and Redesdale in Jesson v. Wright, ante, pp. 1211, seq.

(s) 1 B. C, C. 206.